Philippines Laws on Referendum:
Implementation Experience and Challenges1
By Dr. Cheselden George V. Carmona
I. Introduction
The Philippines is a democratic and republican state. The 1987
Constitution explicitly declares that sovereignty resides in the people and all
government authority emanates from them. 2 Yet, it is also a representative
democracy. Fundamental state authorities are delegated to three branches of
government — the Executive, the Legislative, and the Judiciary. Each branch is
supreme in its own sphere but with constitutional limits and guided by the
principle of checks and balances.”3
The President, who is elected by a direct vote of the people every six
years, is the head of the Executive Department. He represents the government
as a whole and ensures that that the officials and employees of his department
enforce all laws and regulations. He has control over the executive department,
bureaus and offices. The Congress or the Legislative branch, on the other hand,
has the authority to make, alter or repeal laws. Composed of the Senate and the
House of Representatives, it is also entrusted with the power to pass the national
budget. Judicial power is vested in the Supreme Court and in lower courts
established by law. 4 The power of judicial review includes the authority “to
declare a law, ordinance, or treaty as unconstitutional or invalid” and “to
determine whether or not there has been a grave abuse of discretion amounting
to lack or excess of jurisdiction on any part of any branch or instrumentality of
Government,”5 including those of the Executive and Legislative branches.
There are also independent constitutional commissions that have been
mandated to carry out specific tasks. One of these is the Commission on
Elections (COMELEC), which plays a crucial role in the implementation of the
constitutional and statutory provisions on initiative and referendum, as discussed
below.
II. Constitutional Guarantee: System of Initiative and Referendum
While the power to legislate is generally lodged with the Congress, the
Constitution ensures that the people retain their lawmaking power through the
system of initiative and referendum.6 This inherent right, which consists of the
power to directly propose, enact, approve or reject, in whole or in part, any law or
1
Paper presented in the International Workshop On Right To Referendum: A Comparative Review On Law
And Practice, November 17-18, 2014, Hanoi, Viet Nam. Dr. Carmona is an international development
practitioner on rule of law, governance, electoral reform and administration and public sector reform. He is
also a professor at the Philippine Judicial Academy, Ateneo De Manila University School of Law and the
Graduate School of Law of San Beda College.
2
1987 Constitution, Article III, Section 1.
3
Francisco, Jr. vs. House of Representatives, G.R. No. 160261, 10 November 2003.
4
Ibid.
5
1987 Constitution, Art. VIII, Sec. 1.
6
ibid, Article III, Section 1.
constitutional amendment, is distinctly acknowledged by the 1987 Constitution in
at least three provisions.
The first is with regard to the authority of the people to directly propose
amendments to the Constitution through “initiative”, which can be initiated
through a petition of at least twelve per centum (12%) of the total number of
registered voters, of which every legislative district must be represented by at
least three per centum (3%) of the registered voters therein.7 It is worth noting
that previous Philippine constitutions (1935 and 1973) recognized only two
methods of proposing amendments to the Constitution – (a) by Congress upon a
vote of ¾ of all its members; and (b) by a constitutional convention. The present
Constitution added the people initiative and referendum as a third mode for
changing the Constitution.
The second constitutional provision pertains to the power of the people to
directly propose and enact laws or approve or reject any act or law or part thereof
passed by the Congress or a local legislative body. Again, this can be initiated
through the submission of a petition for that purpose as long as it is signed by at
least ten per centum (10%) of the total number of registered voters, of which
every legislative district must be represented by at least three per centum (3%) of
the registered voters in the district.8
The third provision seeks to empower the people at the local government
level by mandating Congress to enact a local government code that should
provide for, among others, effective mechanisms of recall, initiative and
referendum.9
In the words of a former Chief Justice, these constitutional provisions have
“institutionalized people power in law-making” because of their express
recognition of the electorate’s residual and sovereign authority to ordain
legislation.10
III. Legal Framework
Since the constitutional provisions on initiative and referendum are not
self-executory, Philippine Congress passed into law R.A. No. 6735 (also known
as the People’s Initiative and Referendum Act) and R.A. No. 7160 (also known
as the Local Government Code of the Philippines), which seek to operationalize
the constitutional mandate that empowers the people to directly propose, enact,
approve or reject, in whole or in part, any law or constitutional amendment
through the system of initiative and referendum. R.A. No. 6735 is the principal
law while the Local Government Code, enacted two years after the passage of
the former, reiterates its provisions on local initiative and referendum.
7
ibid, Article XVII, Section 2.
Section 32, Article VI, 1987 Constitution.
9
1987 Constitution Article X, Section 3.
10
Subic Bay Metropolitan Authority vs. COMELEC, et al., G.R. No. 125416 September 26, 1996.
8
A. Statutory Requirements and Procedures
R.A. No. 6735 was enacted to affirm, recognize and guarantee the power
of the people to directly propose, enact, approve or reject, in whole or in part, the
Constitution, laws, ordinances, or resolutions passed by any legislative body.
Under this law, registered voters of the country, autonomous regions, provinces,
cities, municipalities and barangays may exercise the power of initiative and
referendum at the national and local levels, as long as the required number of
signatories to a petition and the procedures it laid down are complied with.
It also makes a distinction between initiative and referendum. Initiative is
the power of the people to propose amendments to the Constitution or to
propose and enact legislations through an election called for the purpose while
referendum is the power of the electorate to approve or reject legislation or
congressional action through an election called for the purpose. The law
contemplates three systems of initiative:11
1. Initiative on the Constitution which refers to a petition proposing
amendments to the Constitution;
2. Initiative on statutes which refers to a petition proposing to enact a
national legislation; and
3. Initiative on local legislation, which refers to a petition proposing to enact a
regional, provincial, city, municipal, or barangay law, resolution or
ordinance.
a. Initiative to Amend the Constitution
As stated above, propose amendments to the Constitution can be made
through the process of “initiative”. The constitution states that it must be initiated
through a petition of at least twelve per centum (12%) of the total number of
registered voters, of which every legislative district must be represented by at
least three per centum (3%) of the registered voters therein. 12 The Supreme
Court ruled, however, that the provisions of R.A. No. 6735 on the process for
proposing constitutional amendments through initiative are “incomplete,
inadequate, or wanting in essential terms and conditions.” 13 It noted that in
contrast to that of national and local legislation, the law failed to provide for the
details in the implementation of initiative and referendum on amendments to the
Constitution.14
b. National Initiative
Initiative at the national level refers to a petition proposing to enact,
approve or reject, in whole or in part, a national statute. 15 For the public to
exercise this mode of initiative, R.A. No. 6735 requires that at least 10% of the
total number of registered voters, of which every legislative district is represented
11
Sec. 3(a), R.A. No. 6735.
ibid, Article XVII, Section 2.
13
Lambino, et al. vs. COMELEC, et al., G.R. NO. 174153, October 25, 2006
14
Ibid.
15
SBMA vs. COMELEC, et al., G.R. No. 125416 September 26, 1996.
12
by at least 3% of the registered voters, must sign a petition for this purpose. The
petition must state and/or contain the following:
1. contents or texts of the proposed law sought to be enacted, approved or
rejected, amended or repealed, as the case may be;
2. the proposition;
3. the reason or reasons therefor;
4. that it is not one of the exceptions;
5. signatures of the petitioners or registered voters; and
6. an abstract or summary in not more than one hundred words which shall
be legibly written or printed at the top of every page of the petition.
Petitioners must then register their petition with the COMELEC, which is
tasked to verify the authenticity of the signatures on the basis of the registry list
of voters, voters' affidavits and voters identification cards that were used in the
immediately preceding election. If the COMELEC determines that the petition is
sufficient and compliant with the requirements of the law, it has to order the
publication of the petition in newspapers of general and local circulation within 30
days from receipt of the petition. The law requires that publication must be made
at least twice in Filipino and English and must set the date of the initiative or
referendum not earlier than 45 days but not later than 90 days from the
determination by the COMELEC of the sufficiency of the petition.
Figure 1. Procedure for National Initiative
The proposition (i.e. the measure proposed by the voters) will then have to
be submitted to and approved by the voters in an election called for that purpose.
If the proposition is approved by a majority of the votes cast, the national law
proposed for enactment, approval, or amendment shall become effective as a
national law within 15 days after its publication in the Official Gazette or in a
newspaper of general circulation in the Philippines. If the proposition is to reject
or repeal a national law, which has been approved by a majority of the votes
cast, the said national law shall be deemed repealed and such repeal will take
effect 15 days after the completion of the publication of the proposition in the
Official Gazette or in a newspaper of general circulation in the Philippines. In
both instances, the certification by the COMELEC is required. If, on the other
hand, the majority vote is not obtained, the national law sought to be rejected or
amended shall remain in full force and effect.
b. Local Initiative: R.A. No. 6735 and The Local Government Code16
To propose the adoption, enactment, repeal, or amendment of a local
ordinance or resolution, the law requires that at least 2,000 registered voters in
case of an autonomous region, 1,000 in case of provinces and cities, 100 in case
of municipalities, and 50 in case of barangays, must file a petition with the
relevant local legislative body proposing the adoption, enactment, repeal, or
amendment of the ordinance. The law allows proponents to submit two or more
propositions in an initiative.17
If the concerned local legislative body fails to take any favorable action on
the proposal within 30 days from its submission, the proponents, through their
duly authorized and registered representatives, may invoke their power of
initiative after giving notice to the legislative body. They can transform their
proposal into a proposition, which will then be submitted to the electorate for
approval through the initiative process. The law directs the COMELEC to extend
assistance to the proponents in formulating the proposition.
The law gives the proponents specific number of days - depending on the
local government involved - to gather the required number of signatures. They
have 120 days in case of autonomous region, 90 days in case of provinces and
cities, 60 days in case of municipalities, and 30 days in case of barangays, after
notice has to the legislative body referred to above. It is also required that the
petition must be signed before the election registrar and in the presence of the
proponents and a representative of the concerned local legislative body. The
signing must be done in a public place within the territorial jurisdiction of the
concerned local government unit. For this purpose, stations for collecting
signatures may be established in as many places as may be warranted.
After the lapse of the number of days specified above, the field office of
16
The Local Government Code, which is a newer law, basically incorporated the provisions of R.A. No. 6735
on local initiative and referendum. see Sections 120 to 127 of the Local Government Code and Sections 13
to 18 of R.A. No. 6735.
17
Sec. 13, R.A. No. 6735. See also section 9 of COMELEC Resolution No. 2300.
the COMELEC in the local government unit must issue a certification as to
whether or not the required number of signatures has been obtained. If the
required number of signatures is obtained, the COMELEC shall set a date for the
registered voter to vote on the proposition. Such date must be within 90 days (in
case of autonomous region), 60 days (in case of provinces and cities), 45 days
(in case of municipalities) and 30 days (in case of barangays) from the date of
the issuance of the Certificate by the COMELEC that attests to the attainment of
the required number of signatures. The initiative shall then be held on the date
set, after which the results thereof shall be certified and proclaimed by the
COMELEC.
On the other hand, failure to obtain the required number of signature
means that the proposition has been defeated. In such a case, there is no need
to schedule any voting.
Figure 2. Procedure for Local Initiative and Referendum
There are limitations to the exercise of the power of initiative in the local
level. First, it cannot be exercised more than once a year. Second, initiative only
extends to subjects or matters that are within the legal powers of the legislative
bodies to enact. For example, local initiative cannot seek to repeal a criminal law.
Third, local initiative has to be cancelled if the local legislative body decides to
act on the proposition and adopts it in toto.18
The law provides safeguards to ensure that local legislative bodies cannot
easily frustrate the will of the people that have been expressed through the
process of initiative by the simple expedient of repealing or amending the same.
It states any proposition or ordinance or resolution approved through the system
of initiative and referendum cannot be repealed, modified or amended, by the
local legislative body concerned within six months from the date from approval. It
has to wait for three years before it can amend, modify or repeal such legislative
measure and only by a vote of 3/4 of all its members.19 Ordinary legislative action
only requires majority approval. In case of barangays, the period is one year after
the expiration of the first six months
c. Indirect Initiative
Any duly accredited people's organization may also file a petition for
indirect initiative with the House of Representatives, and other legislative bodies.
The petition shall contain a summary of the chief purposes and contents of the
bill that the organization proposes to be enacted into law by the legislature. The
procedure to be followed on the initiative bill shall be the same as the enactment
of any legislative measure before the House of Representatives except that the
said initiative bill shall have precedence over the pending legislative measures on
the committee.
d. Referendum
Referendum is the power of the electorate to approve or reject legislation
through an election called for the purpose. Though often used interchangeably
with initiative, there are statutory and conceptual demarcations between a
referendum and an initiative. 20 While initiative is entirely the work of the
electorate, referendum is begun and consented to by the law-making body.
There are two classes of referendum. One is the referendum on statutes,
which refers to a petition to approve or reject an act or law, or part thereof,
passed by Congress. The second class is referendum on local law, which refers
to a petition to approve or reject a law, resolution or ordinance enacted by
regional assemblies and local legislative bodies.21
Figure 3. Procedure for Referendum
18
Section 15, R.A. No. 6735.
Section 16, R.A. No. 6735.
20
SBMA vs. COMELEC, et al., G.R. No. 125416 September 26, 1996.
21
Section 3(c), R. A. No. 6375.
19
From the flowchart above, referendum consists merely of the electorate
approving or rejecting what has been drawn up or enacted by a legislative body.
Initiative, in contrast, is a process of law-making by the people themselves
without the participation and against the wishes of their elected representatives.
22
Hence, the process and the voting in a referendum, where the voters will
simply write either "Yes" of "No" in the ballot, is much simpler when compared to
the process involved in an initiative.
It is the view of the author that the constitutional provisions on the conduct
of plebiscite for the purpose of securing the approval of voters on certain political
actions of the government is tantamount of the conduct of referendum. These
include proposed amendments and revisions to the Constitution proposed by
Congress; the creation, division, abolition, merger of local government units;23
the creation of special metropolitan political subdivisions;24 and the formation of
autonomous regions.25 The process for their adoption (electorate approving or
rejecting what has been drawn up or enacted by a legislative body) is consistent
with how R. A. 6735 defines referendum. Furthermore, the constitutional
provision stating, “Congress can only adopt a new name for the country, a
national anthem, or a national seal through a law that has been ratified by the
people in a national referendum”26 is another instance that requires referendum.
IV. Government Agencies Involved
Aside from Congress (which, in cases of referendum has to start
process by passing first a legislative measure and then submit the same to
electorate for ratification or, in the case of initiative, it refuses
pass/amend/repeal certain laws that initiative proponents seek to change),
22
Philippine Political Law, 1991 edition, p. 169.
1987 Constitution, Article X, Section 10.
24
Section 11, ibid.
25
Section 18, ibid.
26
1987 Constitution, Article XV, Section 2.
23
the
the
to
the
other government agencies involved in the conduct of initiative and referendum
are the COMELEC and the court system.
a. COMELEC
The COMELEC is a constitutional body with exclusive mandate to enforce
and administer all laws and regulations relative to the conduct of elections,
plebiscites, initiatives, referendums and recall. In conducting initiative and
referendum, the Constitution and relevant laws task the COMELEC with the
following functions:
1. Receive and determine the sufficiency of the petition and, in this
connection, determine and prescribe the form for instituting a petition;
2. In case of initiatives, provide assistance in the drafting of the proposition;
3. Verify the authenticity signatures on the basis of the registry list of voters,
voters' affidavits and voters identification cards;
4. Order the publication of the petition and proposition and set the date of
election;
5. Conduct the election and count the votes;
6. Declare and certify the results of the election.
Hence, the COMELEC plays a very crucial role when the people exercise
their inherent lawmaking power through the system of initiative and referendum.
The Supreme Court emphasized that the COMELEC should exercise
administration and supervision of the process itself, akin to its powers over the
conduct of elections. 27 It must be noted, nonetheless, that the level of
COMELEC’s involvement and participation in initiative, on the one hand, and
referendum, on the other, are not the same.
The COMELEC has to supervise an initiative more closely than a
referendum. In initiative, COMELEC’ authority extends not only to the counting
and canvassing of votes but also to seeing to it that the matter or act submitted to
the people is in the proper form and language so it may be easily understood and
voted upon by the electorate. This is especially true where the proposed
legislation is lengthy and complicated, and should thus be broken down into
several autonomous parts, each such part to be voted upon separately. Care
must also be exercised that "(n)o petition embracing more than one subject shall
be submitted to the electorate," although "two or more propositions may be
submitted in an initiative."28
In this connection, it passed COMELEC Resolution No. 2300 prescribing
The Rules and Regulations Governing the Conduct of Initiative on the
Constitution and Initiative and Referendum on National and Local Laws. These
rules were later on supplemented by additional rules to cure the defects cited by
the Supreme Court in a case involving the conduct of initiative for amending the
Constitution.
27
28
SBMA vs. COMELEC, et al., G.R. No. 125416 September 26, 1996.
Ibid.
The organizational capacity of the COMELEC to check/verify legal
requirements given its limited resources and time is a crucial challenge that is
limiting the effectiveness of the law. COMELEC, in some instances for example,
had to defer or deny action on the conduct of referendum and initiatives when the
same are scheduled or started very close to national and local elections, which
are held every three years. According to its Deputy Executive Director for
Operations (DEDO), COMELEC’s priority is the preparation for, and holding of,
national and local elections, which are set by the Constitution. Thus, even if
Congress sets a specific date for referendum, or if the holding of election in
connection with initiative is in conflict with its electoral preparations, COMELEC
believes that it is not duty bound to hold referendum or proceeding with the
initiative process.
Likewise, inasmuch COMELEC does not have the requisite funding
needed to hold a referendum or election on a proposition, it is difficult for the
Commission to prepare for it. In local initiatives, it is the local government that is
supposed to provide the funding.
b. Courts
The judiciary likewise plays an important role when the public invokes the
process of initiative and referendum. Consistent with its power of judicial review,
the proper courts can declare null and void any proposition that has been
approved via the route of initiative and/or referendum if the same is in violation of
the Constitution and/or outside the authority of the concerned legislative body.29
As discussed below, there have been several instances where the Supreme
Court had to intervene to stop the process of initiative and referendum as they
were ruled to be unconstitutional.
A number of cases have reached the Supreme Court, most of which arose
from the conflicting interpretation of the constitutional provisions and the laws
seeking to implement them. These cases have provided the Supreme Court the
opportunity to clarify the intent of the Constitution and to provide guidance in the
operationalization of the laws on initiative and referendum. They are discussed
below.
V. Implementation Experience: Issues and Challenges
There had been several instances where referenda were successfully held
and the voice of the people clearly heard. In a number of referendum since the
adoption of the 1987 Constitution, the people was able to express their
agreement (or disagreement) to a class of legislative measures which, per
constitutional mandate, require the approval of the majority of the votes cast in
an election called for that purpose.
Legal challenges and practical issues, on the other hand, have hampered
the effective use of initiative to amend the Constitution or to enact, amend or
29
Section 18, R.A. No. 6735.
repeal national and local statutes. In a number of instances, people’s initiative to
amend the Constitution did not push through when the Supreme Court declared
the process and the law as not compliant with the requirements of the
Constitution. In other cases, practice and financial and logistical considerations
have discouraged proponents from meeting the initial process of gathering the
required number of signatures.
a. Referendum on autonomous regions and creation of LGUs
The Philippines has long years of experience in the conduct of referendum
(i.e. when laws passed by Congress have to be ratified by the people pursuant to
the requirements of the Constitution). For example, in November 1989, a
referendum was conducted in the proposed areas of Autonomous Region of
Muslim Mindanao (ARMM), which was eventually constituted into an autonomous
region.30 The referendum, which was generally considered successful in terms of
implementation, resulted to the creation of the ARMM when the four provinces of
Maguindanao, Lanao del Sur, Tawi-Tawi and Sulu voted to join the area of
autonomy. In September 2001, the province of Basilan and the city of Marawi
joined the ARMM in another referendum called for that purpose.31
A series of referenda was also held for the purpose of ratifying the law that
sought to create the Cordillera Autonomous Region (CAR). In this case,
however, proponents of the CAR failed because the people of the provinces of
Abra, Apayao, Benguet, Mountain Province, Ifugao and Kalinga, and the City of
Baguio voted twice against it. In the first referendum on January 30, 1990, Ifugao
was the only province to vote for self-rule while only the province of Apayao
chose autonomy in the second plebiscite held on March 7, 1998.32
The conduct of referenda for the conversion of various municipalities into
cities can also be considered generally successful. Under Philippine laws, a city
can only be created if Congress passes a law for that purpose and the majority of
the voters in the local government units (LGUs) directly affected expressed their
approval through a “Yes” vote in referendum/plebiscite organized by COMELEC.
According to the website of the Philippine Senate, the number of cities in the
Philippines has substantially grown from 61 in 1977 to 143 cities in 2012, or an
increase of 134 percent. 33 This means that in these referenda, the electorate
generally supported Congress and voted in favor of the proposed legislative
measure.
Yet, there had been an instance when the Supreme Court on
constitutional ground disregarded the will of the people that was expressed in a
30
Pursuant to Republic Act No. 6734, otherwise known as the Organic Act of the Autonomous Region in
Muslim Mindanao, which was signed into law by then President Corazon C. Aquino on August 1, 1989.
31
ARMM History, Official Website of the ARMM, http://armm.gov.ph/history/.
32
Cordillera turns back on autonomy, NEDA Website, http://car.neda.gov.ph/cordillera-turns-back-onautonomy/
33
Cities in the Philippines at a Glance, Senate website (November 2013),
https://www.senate.gov.ph/publications/AAG%20on%20cities_FINAL_nov%20%2028.pdf
referendum. In this case, despite the overwhelming ratification by majority of the
people of the creation of a new province in the ARMM area (i.e. 285,372 in
favour and only 8,802 against), the same was invalidated because the body (i.e.
Regional Legislative Assembly of the ARMM) that passed the law and called for
its ratification in a referendum does not have the authority to do so. According to
the Supreme Court, it has no power to propose a law to “create, divide, merge,
abolish or substantially alter the boundaries of provinces, cities, municipalities
and barangays” and submit the same to referendum since that power rests solely
with the national legislative assembly.34
b. Efforts to amend/revise the Constitution through initiative
There had been two attempts already to amend the Constitution via
initiative. The first was in 1996 when the group People’s Initiative for Reforms,
Modernization and Action (PIRMA) filed with COMELEC a petition to amend the
Constitution to lift the term limits of elective officials through people’s initiative. 35
As noted elsewhere in this paper, Section 2, Article XVII of the Constitution
states that “[a]mendments to this Constitution may likewise be directly proposed
by the people through initiative upon a petition of at least twelve per centum of
the total number of registered voters, of which every legislative district must be
represented by at least three per centum of the registered voters therein.”
Pursuant to the petition, COMELEC issued an order directing the publication of
the petition and of the notice of hearing and thereafter set the case for hearing.
The Supreme Court eventually stopped the COMELEC from entertaining the
petition and held that R.A. No. 6735 is incomplete, inadequate, or wanting in
essential terms and conditions insofar as initiative on amendments to the
Constitution is concerned (Defensor-Santiago, et al. vs. COMELEC). 36 In this
regard, the portion of COMELEC Resolution No. 2300, insofar as it prescribes
rules and regulations on the conduct of initiative on amendments to the
Constitution, was also declared void.
The second attempt was in 2006 when another group invoked the same
provision of the Constitution to propose amendments. Its petition proposed a shift
from the present Bicameral-Presidential system to a Unicameral-Parliamentary
form of government. It claimed that: (a) the petition had the support of 6,327,952
individuals constituting at least 12% of all registered voters, with each legislative
district represented by at least 3% of its registered voters; and (b) COMELEC
election registrars had verified the signatures of the 6.3 million individuals. The
following proposition was sought to be presented to the people for ratification:
Do you approve the amendment of Articles VI and VII of the 1987 Constitution,
changing the form of government from the present bicameral-presidential to a
unicameral-parliamentary system, and providing article XVIII as transitory
34
Sema vs. COMELEC and Dilangalen, G.R. No. 177597 (July 16, 2008)
The term limit of the President is 6 years without re-election; vice president and senators, 2 terms of 6
years each; and 3 consecutive terms of 3 years each for barangay officials, municipal and city officials,
provincial officials, and members of the House of Representatives.
36
G.R. No. 127325, March 19, 1997.
35
provisions for the orderly shift from one system to the other?
Again, this proved to be unsuccessful because the COMELEC refused to
entertain the petition pursuant to the Supreme Court ruling in the previous case
of Defensor-Santiago vs. COMELEC. When the COMELEC’s inaction was
brought to the Supreme Court, the Court upheld the COMELEC and threw out
the case on the following grounds:37
1. The initiative petition is not compliant with the requirements of Section 2, Article
XVII of the Constitution on direct proposal by the people. The Court held that while
the abovementioned provision does not expressly state that the petition must set forth the
full text of the proposed amendments, the deliberations of the framers of the Constitution
clearly show that: (a) they intended to adopt the relevant American jurisprudence on
peoples initiative; and (b) in particular, the people must first see the full text of the
proposed amendments before they sign, and that the people must sign on a petition
containing such full text. The essence of amendments “directly proposed by the people
through initiative upon a petition” is that the entire proposal on its face is a petition by the
people. This means two essential elements must be present. First, the people must
author and thus sign the entire proposal. No agent or representative can sign on their
behalf. Second, as an initiative upon a petition, the proposal must be embodied in a
petition.
These essential elements are present only if the full text of the proposed amendments is
first shown to the people who express their assent by signing such complete proposal in
a petition. The full text of the proposed amendments may be either written on the face of
the petition, or attached to it. If so attached, the petition must state the fact of such
attachment. This is an assurance that every one of the several millions of signatories to
the petition had seen the full text of the proposed amendments before – not after –
signing.
Moreover, “an initiative signer must be informed at the time of signing of the nature and
effect of that which is proposed” and failure to do so is “deceptive and misleading” which
renders the initiative void.
2. The Constitution does not allow revision through initiatives. Although the third mode
for amending the Constitution is through a people’s initiative,38 the same applies only to
an amendment of the Constitution and not to its revision. In contrast, Congress or a
constitutional convention (the other modes) can propose both amendments and revisions
to the Constitution. What the petitioner was proposing was a revision of the Constitution,
which broadly implies a change that alters a basic principle in the Constitution, like
altering the principle of separation of powers or the system of checks-and-balances.
There is also revision if the change alters the substantial entirety of the Constitution, as
when the change affects substantial provisions of the Constitution. In contrast,
amendment broadly refers to a change that adds, reduces, or deletes without altering the
basic principle involved. Revision generally affects several provisions of the Constitution,
while amendment generally affects only the specific provision being amended.
As things stand now, Congress has yet to pass a new law or amendment to
cure the inadequacy of R.A. No. 6375, which is supposed to enable the public to
propose constitutional amendments. Also, no new attempts had been made
37
Lambino, et al. vs. COMELEC, G.R. No. 174153, 25 October 2006.
The other modes are (a) through Congress upon three-fourths vote of all its Members; and (b) through a
constitutional convention.
38
since the Supreme Court stopped the last people’s initiative to change the
Constitution. It must be pointed out, however, that there was a subsequent
minute Resolution issued by the Supreme Court wherein ten of its members
stated that R.A. No. 6735 is sufficient and adequate to amend the Constitution
thru a people’s initiative, which left the issue hanging. 39
c. National initiatives
To date, no national law has been passed through the process of initiative.
A check with the COMELEC revealed that while several groups have asked
questions regarding initiative, they have been generally discouraged by the
logistical and financial requirements for gathering the required number of
signatures. Even if some measures were initially supported by civil society
organizations, people’s interests generally waver especially when new national
issues crop up and grab the attention of the people.
Nonetheless, there are ongoing efforts to pass crucial laws, which
Congress failed or refuses to enact, through the process of initiative. These
include the proposed measure to pass an anti-political dynasty bill, the bill to
prohibit pork barrel in national budget and the enactment of a law on freedom of
information. Whether or not these current initiatives will go beyond the signature
gathering stage still remains to be seen.
d. Local initiative to question a resolution
There had been more successful attempts of enacting local laws through
initiative at the local level. According to the COMELEC, there is a barangay
ordinance that was passed through initiative. The ordinance mandated the
control and prevention of the proliferation of informal settlers and mendicant, and
to hold accountable erring barangay officials who coddle them, which the local
legislative body apparently refused to pass. The proposition became a barangay
ordinance when 465 voters approved as against 384 voters who rejected it.40
Another initiative involves a proposition for the creation of cooperative to manage
barangay funds. It is now undergoing review by the COMELEC to determine
compliance with the requirements of the law.
Nonetheless, people’s initiatives at the local level were also fraught with
challenges. One case involved a petition filed in a local legislative body seeking
to annul a municipal resolution that expressed concurrence to a law passed by
Congress, which created an economic zone (Subic Economic Zone) and made
the municipality a part of it. The petitioners filed a petition before the local
legislative body to annul or recall the municipal resolution and sought to include
certain conditions if the local government were to join the special economic zone.
Not satisfied with the action of the local legislative body, the petitioners
subsequently invoked people’s initiative under the Local Government Code.
39
See Min. Res., GR No. 174153, Lambino and Aumentado v. Comelec; GR No. 174299, Binay, et al. v.
Comelec, et al.; November 21, 2006
40
COMELEC’s Canvass of Votes and Proclamation, Initiative held on May 14, 2011.
When COMELEC refused to take action on the petition for initiative on the
ground that its subject was a mere Resolution and not an Ordinance, petitioner
then went to the Supreme Court to reverse the decision of the COMELEC. In the
said case, the Supreme Court held that Resolution could be subject of a local
initiative.41
When the COMELEC scheduled the holding of the initiative, the Subic Bay
Metropolitan Authority (SBMA) asked the Supreme Court to stop the same
contending that a local initiative that proposes an amendment to a national law is
invalid. The Supreme Court held that the COMELEC in scheduling the initiative
gravely abuse its discretion since the measure being proposed is outside power
of the local legislative body and, thus, cannot be a subject of people’s initiative at
the local level.
V. Conclusions
Implementing a system of initiative and referendum in a political
environment that is still learning its concept and implications will not be easy. It
will take time for the people to fully utilize it as a tool for pushing for laws that
genuinely serve their interest. It has now been more than 25 years since the
Philippine Congress passed the law on initiative and referendum. Results have
been mixed with regard to its implementation. Referendum can be considered
relatively more successful in the sense that the use thereof to ratify certain acts
of Congress has fully empowered the people to directly express their will. The
approval of the establishment of autonomous regions in Muslim Mindanao, and
the rejection of the same measure in the Cordillera region by those directly
affected are clear indications that this system for directly consulting the people
work. The same is true with regard to the conversion of municipalities into
chartered cities (generally resulted to ratification) and creation of new local
government units.
In contrast, people’s initiative to enact national statutes has yet to produce
a law although various efforts initiated by civil society organizations (CSOs) are
still ongoing. Previous attempts to amend the Constitution via the system of
initiative and referendum, on the other hand, failed because of legal questions the inadequacy of R.A. No. 6735 when it comes to constitutional amendments.
In the local level, there had been successful people initiatives although
some were challenged in the Supreme Court on various legal grounds. Those
that succeeded have opened the eyes of the people regarding their power to
enact laws and ordinances. As people become more aware of their rights and
confident about their inherent power to directly craft laws through the system of
initiative and referendum, it can be expected that more and more attempts will be
made by organized groups including civil society organizations.
41
Enrique T. Garcia, et al. vs. Commission on Elections, et al., 237 SCRA 279, September 30, 1994.
Lesson Learned
From the foregoing experience of the Philippines in the operationalization
of the system of initiative and referendum, some lessons can be drawn up, which
can be summarized as follows.
1. Inasmuch as the process of initiative and referendum is an exercise of an
extraordinary power of the people, the law that seeks to operationalize it
must be complete and unambiguous to avoid constitutional challenge.
Compliance with constitutional and legal requirements is a must because
any defect in the procedure followed can lead to the invalidation of the
whole process. As shown by the experience of the Philippines, these
omissions and/or defects are fatal:


The failure of the proponents to prepare and show the “draft of the
proposed constitutional amendment” to the people “before” they
sign such proposal was the ground cited by the SC in saying that
the process was not compliant with constitutional requirements. It
said that framers envisioned that the people should sign on the
proposal itself because the proponents must “prepare that proposal
and pass it around for signature.”
The failure of local election registrars to actually verify the
signatures of the petitioners as required by law, and for the
proponents to insist the same, was one of the issues raised against
a people’s initiative. According to a group of lawyers which opposed
the people’s initiatives, signatures that were gathered in at least
nine provinces by groups pushing for a “people’s initiative” to
change the Constitution were found either to have not been
properly verified or not verified at all by election officers of the
Commission on Elections.42
2. Politicians to advance their own interests, especially in seeking to extend
their hold of power, can misuse people’s initiatives. In 1996 a group calling
itself “Pirma,” urged an amendment that would allow the reelection of the
incumbent president (President Fidel Ramos), which is prohibited by the
Philippine Constitution. The proponents of the initiative to amend the
Constitution were known associates of the then president and were
believed to be funded by his supporters.
The same was true when another attempt was made to amend the
Constitution in 2006 during the incumbency of another president.
According to political observers, the motive for changing the form of
government from the familiar presidential system to the new and untried
parliamentary government was not the national interest. Rather, people’s
initiatives were pushed and bankrolled by the supporters of then President
42
Only names, not signatures, verified in Sigaw ng Bayan, ULAP-led ‘initiative’, The PCIJ Blog (October 12,
2006),
http://pcij.org/blog/2006/10/12/only-names-not-signatures-verified-in-sigaw-ng-bayan-ulap-ledpeoples-initiative
Gloria Macapagal-Arroyo to enable her to remain in power as prime
minister under a parliamentary government since her term as president
was about to end. 43
3. It takes time for the people to fully appreciate the power of initiative and
referendum. Even if the Philippines has one of the most vibrant civil
society organizations in Asia, it is only now that organized movements are
beginning to realize the potentials of people’s initiative and referendum to
push for their interest. It is surprising that this realization only came
recently despite the fact that Congress, for years, has failed or refused to
enact crucial laws even if the same are constitutionally prescribed and
acknowledged to be important to good governance.
4. One of the hindrances for the effective invocation of the people’s initiative
and referendum is the financial requirements to start the process,
especially in gathering the required signatures. Unless there is a big
political organization or private/corporation to back the effort, the chance
to succeed of a people’s initiative organized by ordinary citizenry can be
very minimal. It is probably for this reason that no national initiative has
been successfully concluded in the Philippines despite the lapse of more
than 25 years, and that the only ones that were able to gather adequate
signatures nationwide were those backed by politicians. Because of this,
there may be a merit to suggestions that the government should provide
financial assistance to an effort to pass a law to implement a constitutional
mandate (e.g. prohibition against political dynasty). Of course, safeguards
must be put in place to prevent politicians from abusing this financial
assistance for their political interest.
5. It is crucial that the agency tasked to administer or supervise initiative and
referendum is provided with sufficient resources to enable it to carry out
these tasks. This is especially true for election management bodies, like
the Philippine COMELEC, which has to prepare and organize national and
local elections every three years. Unless it is given the required financial,
technical and human resources to organize referendum and initiative
related elections, this sovereign right of the people will remain illusory.
43
Abueva,
Jose,
Why
Charter
Change
failed
under
President
Arroyo (2003-2008),
http://joseabueva.wordpress.com/2012/10/21/why-charter-change-failed-under-president-arroyo-2003-2008/